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tv   Today in Washington  CSPAN  October 1, 2011 2:00am-6:00am EDT

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justification first came out. so it's a little bit reminded me of when we were equal protection standard was of rational basis, which in practical effect meant that a classification would have to be a lunatic. >> my constitutional law, my presser caught at the test as anyone could pass it. >> so i looked at all the old equal protection cases to find good language. i cannot one that was called rustic water. it's a case that probably decided the wrong way had
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anything brandeis in a couple of other very respect it juristic centers, but it had this language that are quoted in reid v. reid, it was favorable to striking down arbitrary classifications. so that heightened scrutiny, the exceedingly persuasive justification is the best trees that i could use and as they been used at least twice before this >> justice o'connor in mississippi. >> that was in 82. >> interesting. that's why he didn't take craig v. boring. as i went to the other language. sorry, this is getting wonky. let's go on. today you said you think you
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would never be confirmed for the supreme court because of your activism at the aclu. what do you think is changed? to think it's the confirmation process are the politics are brought to you or something? >> just the process itself, when i was nominated for the good job i now have [laughter] , chief justice worker came to congratulate me. and he said, ruth, you know when i became chief in 1969, my confirmation hearing lasted exact way one hour. i said yes, cheese, and there's one word that describes the difference in that word is television. the members of the committee have all that free time to
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communicate to the folks back home, to impress them with their knowledge and they're not going to get that out. so that hasn't changed. what has changed is back in 1993 and again in 94 when justice breyer was nominated, there is a too bipartisan spirit prevailing in the congress. now, vice president and now vice president biden, leaking ranking republican member was orrin hatch. you can read orrin hatch's autobiography and he will tell you this great pride that before the president nominated me, before he nominated justice breyer, he called senator hatch
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and said, or income i had a gain of nominating ginsberg or breyer, breyer or ginsburg. would that be okay with you? that doesn't happen anymore. aiming, i was confirmed 96203. think of the vote for elena kagan who superbly qualified for the child and she had many more negative vote because the division was on party lines. sunday, we will get back to the way it once was, but it will take people on both sides of the aisle was sent to really care of making government work to affect that change. i should say privately that the white house people were quite worried about my aclu
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affiliation and what they call murder boards, preparation for the hearing. people in the white house staff would take the part of various senators and ask a question and the questions it be, run this way. you run the aclu board in the year 1976. and in that year, the past that resolution. did you vote for it? i said stop because i will not do anything to disparage the aclu. and so, they grudgingly gave up. and there was not a single question asked by any senator, republican or democrat about the work i attended the aclu.
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that would not happen to me. >> if you could accomplish one thing before leaving the bench and assuming all of your colleagues would magically agree, what would that could be? >> it's hard to pick out just one game. [laughter] well, i would probably go back to the day when the supreme court said that the death penalty cannot be administered within even hand. ..
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i would not be able to make things perhaps a little better. so i have stated in that business. as far as other issues are concerned i don't think the label means as much as students and law professors think they do. watch what the court does, not what it uses. >> you are not a fan of different levels of scrutiny and in the ideal world you shift to
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equal citizenship. a i would like to hear you talk about that a little bit more especially whether it provides enough guidance, not that level of scrutiny provide much guidance either. >> the jury case is a perfect example. people as equals citizens and equal in opportunity. = in what they can aspire to do. i do think also that thurgood marshall had the right idea when he said it is a sliding scale. how important is it? governmental interest. surge in defense but just as we would not recognize any odious
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racial classification of the kind that once existed, so it should be for all people we should not be stopped from pursuing whatever talent god has given us simply because we are a certain race or certain religion or surge in national origin or certain gender preference. >> when does this end? >> 25 minutes. >> fabulous. has being on the supreme court more or less been what you thought it would be like or has it been different and if so how so? >> the most surprising thing to me is the high level of collegiality. you might not get that idea if
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you read justice antonin scalia's descend in the vmi case. >> i notice that. >> dennis his style. is the opinions are always attention grabbing. i don't say anything about the other side or rather people -- may be boring. it is different style. justice sonia sotomayor never put -- anthony lewis -- the 27 on appeal. >> i have those opinions and i was reading a lot of them.
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i sometimes wonder, after deciding a bitterly divided case you folks come to work the next day and see each other. how does it work? >> it is not merely respect but we genuinely like each other. antonin scalia is my biggest buddy at the opera. we have traveled different places in the world together. the best example of how the court operates as a family with each other, first colorectal cancer which was diagnosed early in september and the first monday in october, everyone
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rallied around me to make it possible for me to show up in court. that first session at the end of it and she said justice rehnquist called and said we should keep you light. what case would you like to have? something he had never done before. and i said she is not -- i am going to go through chemotherapy and radiation and there will come a time i need a light assignment but this time in two cases i would like to have she said those were two cases i was thinking you were pregnant. she gave me one. sandra called and said you will
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get a lot of cards. don't even try to answer them. just concentrate on what you have to do. when you get chemotherapy, schedule this on a friday so you get over it saturday and sunday and be back in court on monday. everyone cared and took care of me so i could get to that hard time and same thing by pancreatic cancer surgery. >> that is a sign of the relationship of the justices we don't see often because it is not written down. you have also said we all revere the courts and what we want to do is make sure we don't do any damage to it. that means none of us can
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project power will sing leak onto the other. we are a collegial bench. i wanted to hear you talk more about that constitutional vision and role and purpose. >> the u.s. supreme court is unique in the world to the extent society accepts the court having final word on what the constitution means and because that is a heavy responsibility there have to be five people who agree on what the outcome is. sometimes i am asked why did you put that in or the other thing in? and you think about what i am doing i am writing for a court.
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so i take notes in our conference and a signed opinions and try to incorporate the views that others on my side and if i circulate an opinion and someone says please take out footnote or citation to my opinion. [laughter] why not? i am heartened by something john hughes said. he always tried to write opinions as cleanly as clearly as he could. if a colleague wanted him to put in something else, let the law school's figure out what is. [laughter] >> having been a law professor over 30 years i thank you.
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two students when something doesn't make sense you heard her say it doesn't make sense. >> i can say too that there's a lot of togetherness on the court. we have exchangeds with jurors from other countries. four or more of us had exchangeds with the european court of justice a few times. i was in india with antonin scalia. >> on an elephant? >> yes. quite a magnificent, very elegant eleventh -- elephant. when my friends see a photograph of antonin scalia and this elephant, why are you sitting on the back? >> you heard it here.
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we did say that. i wanted talked-about international and foreign law. use and learning about another legal system opened your own system. i don't understand the reservations voiced by my colleagues about referring to foreign and international law and i was talking to a friend of mine who worked for you when you were on the d.c. circuit and she said even then you traveled to other countries and met with other judges in other countries and often with them in the united states. i wanted to ask what insights those conversations and your study of international law have given you into other systems and into our own. >> there are other ways to achieve the same end and there are bright minds in other places
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struggling with the same basic human rights issues that confront us. think of the balance between liberty and security. how much liberty are we willing to give up in the name of security? one case i give as an example comes on the supreme court of israel as a judgment--the so-called ticking bomb case. the question before the court was if the police have a suspect that they believe knows where and when a bomb is going to go off, can the police use extraordinary means, torture to extract that information?
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the message of that opinion was torture, never. the explanation is if we allow security concerns to so overwhelmed our deep attachment to fundamental human values, the dignity of each person we will come more and more to look like our enemies. what greater victory could we hand them that over time to resemble them in their disrespect for human dignity. i think we have a majority of the court recognize facts the value of -- i should qualify
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that by saying what another court does is president and the united states court, people serving our system. but still, if i can refer an opinion to any of them, no one questions that, why should they question something from the supreme court of canada or the german constitutional court for the european court of human rights? >> you also said you escorts failure to engage with decisions in other countries could undermine the overall influence of this country and the sense that we are part of the world
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community. >> yes. until world war ii we didn't look abroad because there was nothing to look at. most systems were fiercely attached to a parliamentary supremacy which meant the legislature, not the court said what the constitution means. after world war ii constitutional court's emerged in many places in the world. those courts had only one place to look and that was decisions of the u.s. supreme court. after some years when i went abroad i was often asked we look at decisions of your court -- i
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don't buy this but to see what you think about this hard question. and yet you never refer to our decisions. don't you think we have something to contribute to this international conversation? about fundamental human rights? what i have said is with many courts engaged in this activity, if we don't listen to others, if we pay no attention we won't be listened to. nowadays it may be that canada's supreme court is cited in 4 decisions more frequently than decisions of the united states supreme court because you pick
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up decisions of that court on questions of human rights you will find that they refer to decisions of the courts. we don't very often. there are notable exceptions. what was the case? the case that held consentual same-sex relations cannot be made a crime. lawrence versus texas. justice kennedy cited the leading decision of the european court of human rights from 1981 and several follow-on decisions. not because we are bound by judgments of the european court
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of human rights but because that court was recognized that consensual relations between two people do no harm to anyone. cannot be something that government prohibits. and then also in other cases there have been references to decisions and foreign legislation. you would think there would be more and more of it. when our nation was knew we look abroad. >> very common. >> yes. as far as international law is concerned, that is part of our law. we are among the world's nation's so we are bound by the
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law of nations which is what they call international law and john marshall's day. >> i have to ask one question or i cannot face my friends. since i am basically an employment lawyer, the walmart case. >> i thought it would be lily ledbetter. >> i have a question about that too but that was such a happy case in terms of the ultimate result. your descent in lily ledbetter turned people's heads. you read from the bench. one of the first times in your career in 2007. one question before i get back to walmart which they will kill you if they don't tell you about. almost never or maybe never read
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from the bench. what changed? >> the court's custom is the majority opinion will be summarized from the bench and the person who reads the majority opinion and summarizes it will say justice so and so filed the dissenting opinion but it is not summarized. if you think that the court cannot simply got it wrong but justice stevens's expression that the court was profoundly misguided, that it was egregiously wrong, and want to call attention to that and in lily ledbetter's case there was immediate object that ended it
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by saying the ball is in congress's court. to say what congress meant all along. in other cases you are speaking to a later court. and hope that the law will be as they thought it should be. the great dissenters in first amendment cases they were just two. most of their descents are today the law of the land. either you are aiming for immediate reaction, the reaction to lily ledbetter was just like the reaction to the gilbert case. discrimination on the basis of pregnancy is not discrimination on the basis of sex.
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and the discrimination act was the result of that. people understand the coalition -- everyone came on board for the pregnancy discrimination and there was a similar reaction in lily ledbetter's case. >> bringing it back to walmart. the supreme court's opinion unsettled class action law in a big way and also changed the economics of class action law. i struggled to find a question i could ask you but i couldn't find one. but here is what i came up with. what are some of the key issues that provided the -- some of those at the part of the
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majority opinion the descenders signed on but i don't want to get too one key. >> there two parts. one is the requirement to have a class-action that you have a common question of law. that was the gateway determination that has to be made in every class action. it had been considered not a very high hurdle. the court held it was quite a steep hurdles. the common question of the law or fact in the walmart case was women overwhelmingly were not getting raises for being
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promoted at the rate that men were getting raises for being promoted. and the court said this class has 1.5 million people. those are 1.5 million discreet employment questions. how could there be any commonality? maybe one woman was passed over because she was stealing from the till. maybe another one was incompetent. the dissenters understood the argument that there were people
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making decisions and they were overwhelmingly white men and the people they were choosing for the promotions were of the same race, the same gender. perhaps there was unconscious bias. not delivered discrimination but people feel more comfortable with people like themselves. the example i gave in the opinion criticizing the majority was there was a great transformation in symphony orchestras in the united states by the simple device of dropping occurred and so the audition her didn't know if it was a woman or man. as i mentioned this morning my friend told me it was more than
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that. we auditioned two. don't hear the woman coming on stage. there was no deliberate discrimination but a woman came on stage and there was a certain perception that was different than when it was a man. the other part on which we all agree was what kind of class action should this be? if you are speaking about injustice you can go under an easier form to deal with than beef 3 when dominant complaint is money. what you want is money.
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the be 2 classes were prominent when people were seeking class relief which is no segregation in schools. you want the decree that would bind everyone and didn't matter if one member liked to be segregated over the same thing in the effort to put women on juries. some women might say i like it the way it is. don't change it. the release has to be the same for every member of the class. that is what it was meant to deal with and not money claims. the claim in walmart is we want injunction relief and back pay. the court thought the driving force in that case was the money. most of the women in the class had already left walmart and the
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injunction -- everyone wanted the money and so did the lawyers. we said this class is fit for b3 classification and we were unanimous. you couldn't take a class action rule that dealt with money claims and injunction relief claims and try to shove the money claim into the injunction relief. >> everyone is standing up but i will ask two more questions but before i do want to thank everybody for helping me prepare for this interview. my staff at the center like linda greenehouse and hillary hardcastle and mary little,
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susan williams and my gender in law class. my two last questions. what is your favorite comfort food? [laughter] >> marty made so many wonderful things. to pick out one thing, i don't know if you would call it comfort food but the ambassador of france to united states had dinner with us and said marty made the best baguettes. he baked his own bread. >> my last question is what would you like to see as your legacy on the court? >> i would like people to think
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of me as a judge who did the best she could with whatever limited talent i have. she keeps our country true to what makes it a great nation. and to make things a little better than if i hadn't been there. >> i would like to thank you for all you have done on behalf of women and working so hard to keep the court a respected institution. thank you. [applause]
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